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HCJ 7444/03 Balal Maour Daka v. Minister of the Interior 147
HCJ 7444/03
1. Balal Masour Daka
2. Manar Rashad Daka
v.
The Minister of the Interior
The Supreme Court sitting as the High Court of Justice
[22 February 2010]
Before President D. Beinisch and Justices A. Procaccia and S. Joubran
Petition to the Supreme Court sitting as the High Court of Justice.
Facts: The petitioners were married in 1996; petitioner 1 is an Israeli citizen and
petitioner 2 was born abroad and at the time of their marriage was a resident of the
occupied territories. Following the couple’s marriage, petitioner 2 lived in Israel
pursuant to limited duration permits to stay in Israel granted through a family
unification process. These permits were regularly renewed until 1999, when she
received a permit granting her temporary residence status. In 2003, a government
resolution that had been adopted in 2002 and which had reversed previous policy on
family unification approvals, was legislatively enacted in the form of the Citizenship
and Entry into Israel (Temporary Provision) Law, 5763-2003. That same year, the
couple was informed that petitioner 2’s most recent application for the renewal of her
residence permit had been denied for security reasons.
Held: (Justice Procaccia). Constitutional rights are not absolute, and the legitimacy
of the violation of such a right is determined through a two stage process. The first
stage involves a theoretical balancing of the violated right against the values that the
government seeks to protect by using the measure that creates the violation. The
second stage consists of a second balancing ― based on the results of the theoretical
balancing conducted in the first stage ― of the concrete facts involved in each side
of the equation in the particular case. In this case, the government’s 2002 resolution
and the 2003 Knesset law changed the existing policy regarding family unification,
such that the starting point in all such decisions was now that all applications for
family unification would be denied unless they fall within certain exclusions
including transitional provisions included in the statute. Because the denial of family
unification status violates the constitutional right to a family life with a spouse who
is or was a resident of the territories, these exclusions must be construed purposively,
http://en.wikipedia.org/w/index.php?title=Ayala_Procaccia&action=edit&redlink=1
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148 Israel Law Reports [2010] IsrLR 147
so that they provide the required balancing. The transitional provision applicable to
the petitioners’ particular case is the provision applying to an extension of a
residency status that had been granted prior to the new government resolution, and
states that such a status “may” be extended ― ruling out an automatic denial of
applications for renewal. The provision further stipulates that such extensions are to
be allowed “while taking into account, inter alia, the existence of a security
impediment” ― indicating that a security impediment will be a factor to be weighed,
but not an automatic ground for denial. Thus, in the case of an application from a
non-Israeli spouse who has already lived in Israel for several years pursuant to a
valid permit, the strength of the violation of the right to a family life is to be balanced
against the strength of any security-related impediment that may be present in the
particular case. If the applicant has already been living in Israel for several years and
has children who have been born in Israel and are being educated there, the non-
renewal of a residence permit is a severe violation. A security-related impediment
will justify such a violation only when it is also of great weight. The efficacy of
measures less drastic than the non-renewal of the permit must also be considered.
In this case, the applicant had been living, working and raising a family in Israel for
seven years by the time the application for an extension of her residency status had
first been denied. Her family’s strong expectation and interest in continuing their
united family life needed to be weighed against the serious security concern raised by
the fact that several members of her family were involved in terrorist activity;
however, that security interest was an indirect one, because it did not involve the
applicant herself and instead involved only her relatives, while there had been no
evidence regarding her own involvement in dangerous activity. In such a situation,
the state would need to establish that the probability that she herself would present a
danger reached the level of near certainty in order to justify the violation of the right
to a family life, but no such probability had been proven here. A proper weighing of
the intense violation of a right to a family life against an indirect security danger
presented by relatives of one applicant would indicate that the applicant should be
permitted to stay in Israel, subject to a set of conditions which would include a
commitment on her part to cut off all contact with the relatives involved in terrorism
and not to visit the territories. In addition, the applicant should receive only permits
to stay in Israel that would require renewal every six months, in order to allow proper
monitoring of her behavior.
(President Beinisch, concurring). The result achieved through the theoretical and
concrete balancing presented in Justice Procaccia’s opinion is correct. However, in
weighing the interests involved, evidence presented by the security establishment
need not be examined on any level higher than a prima facie review of correctness,
due to the presumption of propriety that applies with regard to the findings of an
administrative authority. In this case, the strength of the evidence of risk presented
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HCJ 7444/03 Balal Maour Daka v. Minister of the Interior 149
by the security establishment was clear. However, a proper weighing of the indirect
risk against the harm done to the petitioners’ rights would nevertheless lead to the
same practical conclusions described in Justice Procaccia’s opinion.
Petition granted.
Legislation cited
Citizenship and Entry into Israel Law (Temporary Provision Law), 5763-2003, ss.
3d, 4.
Israeli Supreme Court cases cited
[1] HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v.
Minister of the Interior et al. (2006) (unreported).
[1A] HCJ 466/07 MK Zehava Galon v. Attorney General (2012) (unreported).
[2] HCJ 6055/95 Tzemach v. Minister of Defense [1999] IsrSC 53(5) 241.
[3] HCJ 6427/02 Movement for Quality Government v. Knesset (2006)
(unreported).
[4] HCJ 7015/02 Ajuri v. IDF Commander [2002] IsrSC 56(6) 352.
[5] HCJ 9070/00 MK Livnat v. MK Rubinstein [2001] IsrSC 55(4) 800.
[6] HCJ 2208/02 Salameh v. Minister of the Interior [2002] IsrSC 56(5) 950.
[7] HCJ 2028/05 Amara v. Minister of the Interior (2006) (unreported).
[8] HCJ 4541/41 Miller v.Minister of Defense [1995] IsrSC 49 (4) 94.
[9] HCJ Horev v. Minister of Transportation [1997] IsrSC 51(4) 1.
[10] HCJ 6358/05 Vanunu v. Home Front Commander (2006) (unreported).
[11] HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v.
Prime Minister (2006) (unreported).
[12] HCJ 59/83 Cohen v. Jerusalem Municipality [1983] IsrSC 37(3) 318.
[13] HCJ 237/81 Dabul v. Petah Tikva Municipality [1982] IsrSC 36(3) 365).
[14] HCJ 1730/96 Sabih v. IDF Commander of the Judea and Samaria Region
[1996] IsrSC 50(1) 353.
[15] HCJ 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [1995]
49(4) IsrSC 221.
For the petitioners ― R. Cohen.
For the respondent ― Y. Gensin, State Prosecutor’s Office.
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150 Israel Law Reports [2010] IsrLR 147
Justice A. Procaccia
JUDGMENT
Justice A. Procaccia
1. In this petition we are asked to order the Minister of the Interior to
reverse his decision to cancel the approval that had been granted for the
unification of the petitioners’ family, and to re-issue to petitioner 2 an
approval for permanent residency in Israel and prevent her deportation from
Israel.
The factual background of the petition
2. Petitioner 1 was born in Israel and is an Israeli citizen. Petitioner 2
was born in Syria and was a resident of the territories [a term defined by law
as referring to a resident of the areas of Judea, Samaria or the Gaza Strip]
before she came to Israel. The petitioners were married in January 1996, and
subsequently submitted an application for family unification and for
petitioner 2 to be granted a permit for permanent residency in Israel. The
couple have several children who were born in Israel and who are Israeli
citizens. In 1998, the petitioners’ application for family unification was
approved, and the “gradual procedure” [regarding residence status for
spouses from the territories] was applied to petitioner 2’s case. At first,
petitioner 2 was given DCL [District Coordination and Liaison Office]
permits valid for a period of 12 months each, and later, in November 1999,
she was given an A-5 temporary residence permit. The permit expired on 14
November 2001. On 4 November 2001 the petitioners applied for the permit
to be extended. They were told to produce documents attesting to the locus of
the center of their lives. Their documents were produced on 18 February
2003. On 12 March 2003, the security establishment stated its opposition to
the extension of petitioner 2’s permit to reside in Israel. Consequently, on 24
April 2003, the respondent informed the petitioners that their application for
the renewal of petitioner 2’s residence permit had been denied for security
reasons. The petition before us followed.
The parties’ arguments
3. The petitioners ask that we order the respondent to reverse his
decision to discontinue the approval of the application for family unification,
and to grant petitioner 2 a permit allowing permanent residence in Israel.
They argue that the respondent’s cancellation of the family unification
approval, which had been granted previously, was extremely unreasonable
and disproportionate, as was his refusal to renew petitioner 2’s temporary
residence permit. They argue that the Minister is both authorized and
required to balance the relevant interests when making decisions on this
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Justice A. Procaccia
matter. He has the authority, and the obligation, to consult with expert
parties, and to weigh the applicable security considerations among the totality
of his considerations and balance them against each other. In this case, they
argue, the Minister divested himself of his duty to decide the petitioners’
matter himself, and essentially transferred the decision-making power to the
security establishment. According to the petition, the respondent’s
considerations in deciding whether or not to cancel a residence permit or to
retract a previously granted family unification approval must be different
from the considerations he is required to weigh in a preliminary examination
of an initial application for family unification. The difference in the type of
considerations to be weighed is required by the principle of proportionality,
and by the different nature of the harm that can be inflicted on the applicants
in the two situations. When approval has previously been given for family
unification, only significant and weighty findings, based on the most solid of
evidence, will constitute a reasonable ground for the cancellation of an
approval or residence permit that have already been issued previously.
According to the petitioners, petitioner 2 presents no security risk for the
State of Israel under the circumstances of this case. She has lived in Israel
with her husband, studied Hebrew and trained to work as a cosmetician and
as an optician; she was licensed to work as an optician by the Ministry of
Labor and Welfare. The couple paid a considerable amount for her studies.
She had worked previously as a secretary to the President of the Appellate
Sharia Court ― a job from which she was dismissed following the
intervention of the respondent’s representative. She recently completed a
community leadership course organized by the Shatil organization, and she
has been socially active and is a member of the Zemer Women’s Council, a
position to which she was appointed by the head of the Zemer Local Council.
Petitioner 1 has been a government employee for many years and serves as
the secretary of the Regional Building and Planning Commission for the
Eastern Sharon Region. In reliance on the family unification approval and the
residence permit granted to petitioner 2, the couple changed their situation,
set down roots, and settled and raised a family in Israel. They argue that
cancellation of the family unification approval and of petitioner 2’s residence
permit is unreasonable and disproportionate, and signifies the dissolution of
their family and a violation of their legitimate expectation to realize their
right to a family life, to equality and to protection against discrimination
based on nationality or religion.
With regard to the respondent’s arguments, which will be described
below, the petitioners reject the argument that the continuation of petitioner
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152 Israel Law Reports [2010] IsrLR 147
Justice A. Procaccia
2’s stay in Israel constitutes a risk to public security in light of the
involvement of her three brothers in terrorist activity. Petitioner 2 presents no
danger, it is argued. The petitioners note that the approval of the family
unification application, as well as the renewal of petitioner 2’s temporary
residence permit, both occurred while her father was serving in a senior
security position in the Palestinian Authority as Chief of Police in Tul-
Karem; moreover, both approvals were granted after one of her brothers had
been arrested by the Israeli security forces and another brother ― according
to information provided by the state ― had undergone military training in
Afghanistan. Despite this, there has never been any suspicion that petitioner 2
herself has been involved in any hostile activity against Israel, or that she
supports such activity. Moreover, petitioner 2’s father, who had in previous
years served as an assistant to the Civil Defense Commander in Tul-Karem,
has recently retired, and she is not in regular contact with her brothers,
although she did visit with one of them while he was imprisoned in Israel,
and is in telephone contact with her parents.
The petitioners expressed their willingness to accept a series of
restrictions as a condition for petitioner 2’s continued residence in Israel,
including an undertaking to break off any contact with her father and her
brothers, in response to the concern expressed by the state that her relatives
who are involved in terrorism may attempt to draft her to engage in activity
against the State of Israel. They also offered to undertake not to enter the
territories, to notify the security establishment of any plan to leave Israel and
to provide the details of any planned travel, and to undertake that they would
not, by either act or omission, act against the security of the State of Israel or
against the public peace, or assist any other party in doing so.
4. The respondent, on his part, argued that the security reasons that give
rise to a substantial concern regarding national security and the public peace
provide a reasonable and relevant basis for his decision not to renew
petitioner 2’s Israeli residence permit in the framework of family unification.
According to the respondent, his decision is mainly based on information
received to the effect that petitioner 2’s father is in contact with the heads of
the Palestinian security forces, and that her three brothers are involved in
terrorist activity ― two of them in the framework of organizations operating
in the Palestinian Authority’s territory, and the third in the framework of the
Islamic Jihad organization. The brothers are involved in terrorist activity at a
high risk level, which is directed against the security of the State of Israel and
against its existence. This involvement also creates a risk with respect to
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Justice A. Procaccia
petitioner 2 as their relative, whose residence in Israel could be exploited by
parties who are endangering the Israeli public.
5. Respondent’s counsel stressed repeatedly in her arguments that the
discretion granted to the Minister of the Interior with respect to the
examination of an application from a foreign resident for an Israeli residence
permit is very broad, and the scope of permissible review of that discretion is
very narrow. In the framework of this exercise of discretion, the Minister can
and must consider, inter alia, the danger that could be presented to the Israeli
public and to the security of the state or to its vital interests as a result of the
granting of the application. For the purpose of assessing this danger, the
Minister of the Interior is required to consult with experts. When, in the view
of the experts, there is a real possibility that such a danger will arise, the
Minister of the Interior may take this assessment into consideration, and give
it serious weight in his calculation.
6. The respondent argues that the accumulated experience of the
security establishment indicates that terrorist organizations customarily look
for relatives of those activists who are residents of the territories ― relatives
who live in Israel and carry Israeli papers as a result of a family unification
process ― and recruit them in order to promote their objectives. These
relatives are an attractive target for the terrorist organizations because of their
freedom of movement within the territory of the state, and because of their
close familiarity with the area. These relatives can become victims of
exploitation by the terrorist organizations, completely unknowingly and
innocently. The security risk presented by these relatives is therefore no less
than the risk presented by a person who is directly involved in terrorist
activity. The nature of the family relationships of those seeking residency
status in Israel is relevant to the considerations of the authorized party and
should be given proper weight. The relevant question to be considered is
whether the residency status and freedom of movement within Israel that will
be granted to the applicant are likely to endanger the public peace in light of
the applicant’s family connections with terrorist organizations. The
respondent’s position is that these connections are sufficient to establish a
danger to public peace, especially when there are several relatives who are
involved in terrorism, and that it is not necessary for there to have been any
negative intelligence information relating directly to the applicant himself.
The reasonableness of this position, they argue, is even clearer in light of the
severity of the country’s security situation, and the real danger to public
peace and state security that arises as a result of an Israeli resident’s
connections to terrorists.
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154 Israel Law Reports [2010] IsrLR 147
Justice A. Procaccia
7. The state notes that the main danger presented by petitioner 2 relates
to her connection to her three brothers who are actually involved in terrorist
activity, both in fundamentalist organizations in the Palestinian Authority’s
territory, and in the framework of the World Jihad organization’s activity
abroad.
Petitioner 2’s brother, Wa’al Daka, born in 1974, is an activist in World
Jihad. He is currently located in the United Arab Emirates and is in contact
with various terrorists, including activists in the Al Qaida terrorist
organization. He is a member of that organization’s military wing. Wa’al
remains in contact with his relatives and with additional terrorists who come
to visit him abroad.
Basl Daka, another brother, is a Hamas military activist in Tul-Karem and
belongs to the extremist Islamist religious stream. He underwent military
training in Afghanistan, and during his interrogation he acknowledged that he
had been recruited to the Al Qaida organization and that the training that he
underwent there was meant to further the organization’s war of jihad. After
his release from prison, he continued his activity on behalf of the Hamas
organization in the territories, and is in constant contact with Wa’al and with
other Hamas operatives.
Yet another brother, Walid Daka, is a Hamas military operative, who,
during his interrogation following his arrest, acknowledged that he had been
recruited by the Hamas organization and had taken part in checking out a
route in anticipation of a terrorist attack; that he had been given weapons,
fired a pistol, and purchased materials for the preparation of bombs and for
the purpose of planning attacks, including a plan to poison the water in an
Israeli settlement. He was convicted of having committed a series of crimes
against regional security in the context of his membership in Hamas. After
his release from prison in 2004, he continued his activity in the Hamas
organization.
Petitioner 2’s father served as a high level officer and in a senior position
within the Palestinian Authority. He served until recently as the Civil
Defense Commander in Tul-Karem, and was in contact with the heads of the
Palestinian security forces.
The family members are in ongoing contact with each other, and
according to the respondent, petitioner 2 has been in continuous contact with
the members of her nuclear family and even visited Basl while he was in
prison. The respondent argued that petitioner 2 lied when she told the Court
that she had severed ties with her family.
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Justice A. Procaccia
The respondent argues that in light of these family connections, petitioner
2 presents a high-level security risk. The serious information regarding her
brothers, based on their status and activity in various terrorist entities, and the
untrustworthiness of her declarations regarding her connections with them all
serve as a proper basis for the respondent’s decision not to allow her
continued residence in Israel. The state also notes that since the respondent
refused to renew petitioner 2’s residence permit in April of 2003, she has
been residing in Israel illegally and has also tried to obtain a job in the
Ministry of Justice while using an identity number that was no longer valid.
The course of the deliberations
8. Several hearings were held regarding this petition, over an extended
period of time, during the course of which efforts were made to find practical
solutions to which the parties would agree. Unfortunately, these attempts
were unsuccessful. Consequently, on 8 July 2008, we issued an order nisi
ordering the respondent to show cause why he should not approve petitioner
1’s application for family unification and grant petitioner 2 permanent
residency status in Israel. In this context we asked ― that the respondent also
consider the possibility of reaching a proportionate arrangement, the crux of
which would be to grant petitioner 2 a DCL type temporary residence permit
― one which could be renewed from time to time ― and, if needed, to attach
further conditions that would facilitate the monitoring of her conduct and the
conduct of her family members. We added that in time, consideration should
be given to the possibility of reissuing an A-5 residence permit to petitioner
2, if her circumstances should justify it. The respondent rejected the proposed
arrangement. Following this, we heard supplementary oral and written
arguments from the parties, and we viewed, ex parte and with the petitioners’
consent, the classified material presented by the state with regard to
petitioner 2’s case.
Decision
The question
9. The question to be decided in this case is whether and in what
circumstances the competent authority may cancel a permit that was issued in
the past allowing for family unification and for permanent residence in Israel
for a spouse who has the status of a resident of the territories, due to a family
relationship between the said spouse and terrorist activists, when there is no
security-related intelligence regarding the spouse’s own direct connection
with any activity directed against Israel’s security. This question involves a
constitutional aspect relating to the basic human right to a family life —in
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156 Israel Law Reports [2010] IsrLR 147
Justice A. Procaccia
this case, the right of an Israeli citizen to establish a family with a spouse
from the territories ― which is juxtaposed against a public interest, the main
part of which is the protection of the country’s citizens. An examination of
these contrasting interests, and of the manner in which they should be
reconciled for the purpose of the exercise of the respondent’s authority, lie at
the heart of this petition.
We will first examine the issue in principle, and then the manner in which
the principles are to be applied in the case before us.
The constitutional aspect
10. It is a basic principle that constitutional human rights, although they
are given preferred status in the constitutional regime, cannot be
implemented in an absolute manner. They are afforded only relative
protection when they are set against general interests or contrasting
constitutional rights. The required balancing between basic rights and
conflicting values requires, first and foremost, a theoretical balancing which
views the range of values that are confronting each other conceptually, and
which determines their relative weight in the realm of values. After this
theoretical balancing is carried out, a more concrete balancing is required ―
one that examines the ramifications of the theoretical balancing for the
specific circumstances of the case.
The theoretical balancing
11. The Israeli legal system recognizes the right to a family life as a
basic human right; the right of every Israeli spouse to establish a family unit
in Israel, under conditions of equality in relation to other Israeli spouses, is a
part of human dignity. The right to a family life under conditions of equality
is a protected constitutional right pursuant to Basic Law: Human Dignity and
Liberty.
The Citizenship and Entry into Israel (Temporary Provision) Law, 5763-
2003 (hereinafter: “the Temporary Provision Law”), involves a severe
violation of the right to a family life of an Israeli spouse who is not permitted
to realize his right to a family life in Israel with his spouse who has the status
of a resident of the territories. The Temporary Provision Law negates the
rights of thousands of Israeli Arabs to realize their rights to family life in
Israel and thus violates their rights to human dignity (HCJ 7052/03 Adalah
Legal Center for Arab Minority Rights in Israel v. Minister of the Interior et
al. [1]).
12. In Adalah Legal Center v. Minister of the Interior [1], an expanded
panel of this Court, consisting of 11 justices, dealt with a series of petitions
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filed against the constitutionality of the Temporary Provision Law. We
examined the Law from the perspective of the limitations clause in the Basic
Law: Human Dignity and Liberty, and we examined in depth the matter of
whether the Law was directed at a proper purpose, and whether it complies
with the various aspects of the proportionality test. This examination was
conducted against the background of the conflict between the constitutional
human right to a family life and to equality, on the one hand, and the security
consideration arising under the difficult political and security circumstances
that Israeli society is forced to face, on the other. By a single vote, the Court
took the position that the Law was constitutional at that time, and that the
petitions in that case should be denied. The issue of the constitutionality of
the Temporary Provision Law again became the subject of deliberations in
this Court in a case that is currently pending before an expanded panel (HCJ
466/07 MK Zehava Galon v. Attorney General [1A]).
13. Under these circumstances, and on the assumption that the Law is
constitutional under the current legal situation, it falls to us to interpret the
Temporary Provision Law and to apply its provisions in a manner that will
properly express the conflict between the right to a family, to which all
citizens and residents of Israel are entitled, on the one hand, and national
security considerations, on the other hand ― while establishing the proper
weighting of a basic human right that enjoys a superior position within the
range of human rights, and of a public interest with which it is in conflict.
The interpretation and implementation of the provisions of the Law under
discussion are affected by the constitutional duty to protect the right to a
family as a superior right within the range allowed by the law, while
providing a correct and proportionate response to the security concern as
required by the reality of the current situation, but not beyond the extent that
is necessary. The proper balancing between the basic human rights and the
security value is necessary not only for the purpose of determining the
constitutionality of the Temporary Provision Law, but also for the purpose of
construing and implementing the Law’s provisions, as a practical matter.
Indeed,
‘[a] violation of a human right will be recognized only where it is
essential for realizing a public interest of such strength that it
justifies, from a constitutional viewpoint, a proportionate reduction
in the right’ (Adalah Legal Center v. Minister of the Interior [1]
(per Justice Procaccia, at para. 4)).
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158 Israel Law Reports [2010] IsrLR 147
Justice A. Procaccia
14. The more significant the right that has been violated, and the more
serious the violation, the more substantial the opposing public interest must
be in order for the violation to be justified and proportionate. The violation of
the basic right can be justified only if there is a correlation between the
importance of that right and the weight of the contrasting public interest. The
level of the violation must also fit into this correlation:
‘A serious violation of an important right which serves no purpose
other than to protect a weak public interest would be considered to
be an excessive violation’ (HCJ 6055/95 Tzemach v. Minister of
Defense [2], at p. 273 (per Justice Zamir)).
At issue in the instant case is the proper balance the right of an Israeli
spouse to realize, under conditions of equality, a family life with his spouse
who has the status of a resident of the territories, on the one hand, and, on the
other, the interest of protecting public security. This balance can only be
achieved through the application of relative criteria, rather than through the
use of absolute values. It is built on a determination of the probability of the
degree of danger to life and security on the one hand, versus the importance
of the human right to maintain a family on the other hand. In determining the
proportionate relationship between the two conflicting values, we must
assess, on the one hand, the strength of the public interest ― in terms of the
likelihood of a danger to public peace being presented in these situations by
the realization of the human right to maintain a family; on the other hand, the
level of the violation of the right to a family life resulting from the restriction
that the security establishment seeks to impose here must also be assessed.
We must examine whether there exists, in the balance that is being sought, an
appropriate correlation between the strength of the basic right both in terms
of principle and practice, and the level of the security need, and whether the
violation of the human right that will result is proportionate under the
circumstances.
15. The human right to a family life is one of the basic elements of
human existence; its realization is a condition for reaching fulfillment and a
meaningful existence; it is a condition for a person’s self-fulfillment, and for
his or her ability to tie his or her life to that of a spouse and children in a true
sharing of their fates. It reflects the essence of the human experience and the
embodiment of a person’s strivings. The right to a family life is placed at the
highest ranking on the scale of human rights. A restriction of this right is
permissible only when it is set against a value which is of special power and
importance. In the conflict between the value of security and other human
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Justice A. Procaccia
rights, including the right to a family life, the security consideration will be
the prevail only when there is a near certainty that if the measures leading to
the restriction on the right to a family life are not imposed, the public peace
will be substantially harmed.
16. The state bears the burden of persuasion on the issue of the probability
of a security risk at a level that justifies a restriction of a human right (Adalah
Legal Center v. Minister of the Interior [1] (per Justice Procaccia, at para. 9);
HCJ 6427/02 Movement for Quality Government v. Knesset [3] (per
President Barak, at paras. 21-22 and 49); Tzemach v. Minister of Defense [2],
at pp. 268-269 (per Justice Zamir)). The state must persuade the court that
the probability of the public peace being endangered is at least at the level of
near certainty, and that it will not be possible to protect against that danger
without violating the human right.
17. It has been said, on several occasions, that the “security need”
argument, when made by the state, is not a magic formula which is to be
accepted without question as soon as it is raised. Although the Court does
generally act with restraint when examining the government’s security
considerations, the reasonableness of the authorities’ arguments as well as the
proportionality of the measures that the authorities seek to implement must
nevertheless be examined in depth, whenever the security policy violates
human rights (HCJ 7015/02 Ajuri v. IDF Commander [4], at pp. 375-376;
HCJ 9070/00 MK Livnat v. MK Rubinstein [5], at p. 810). The security risk
must be assessed, in the context of this examination, in terms of the
probability of its realization, as compared to the magnitude of the violated
individual right confronting it, and with respect to the proportionality of the
violation of the right which is to be permitted for the purpose of realizing a
public interest. The security consideration is examined in a two-stage
process: first, the credibility of the security argument is tested; next, the
strength of the security interest in terms of the probability that the security
risk will in fact be realized is reviewed (Adalah Legal Center v. Minister of
the Interior [1] (per Justice Procaccia, at para. 11)).
18. The work of carrying out a constitutional balancing is done first on
the theoretical level; the next step must be a specific-individual examination
with respect to the particular case. A sweeping denial on the part of the
authorities of the rights of individuals who wish to realize their basic rights,
without carrying out an individual constitutional balancing based on specific
information that is unique to the case, is a violation of constitutional
principles ― principles that require both a theoretical and a specific
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balancing. Such a sweeping violation obscures the duty imposed on the
administrative authority to give proportionate consideration to all the
information that is relevant to the administrative decision, and to reach a
decision based on the proper balancing of all the data. It is liable to cause the
attribution of a determinative value to one consideration, and a
disproportionate discounting of a human right which is of central importance.
It can lead to a severe impairment of the values of life and of culture, and to
violations of the principles of a democratic regime, which is based on the
protection of human rights.
Thus:
‘No one will deny the seriousness of the security situation in which
we find ourselves, and the supreme task imposed on the state to
protect the lives of its citizens. At the same time, just as we must
confront the danger to life and defend ourselves against it, so too we
must protect ourselves against the danger of losing security in our
values and in the protection of human rights. We must beware the
erosion of human rights against the background of security
arguments by not maintaining the proper proportion between them.
Without insisting on this proportionality, the constitutional
approach that protects human rights may be eroded; consequently,
cracks may appear in the foundations of our constitution;
democratic patterns of life in Israel may be prejudiced and the
recognition of human dignity and the right to realize one’s identity
may be undermined. We must take care not to be carried away by
security arguments like blind persons in the dark, where doing so
leads to a violation of a human right. We must examine their
credibility and strength in accordance with reliable figures, and
assess it in accordance with the tests of logic, common sense and
the rules of probability.’ (Adalah Legal Center v. Minister of the
Interior [1] (per Justice Procaccia, at para. 22)).
These principles also apply to an examination of the constitutionality of
legislation enacted by the Knesset, and they apply equally to the
interpretation of a law and to its practical implementation, where the law
itself has been found to be constitutional.
Background and main policy principles of the Temporary Provision Law
19. On 12 May 2002, the government adopted Resolution 1813 which set
in place a new procedure for handling applications for family unification
pertaining to Israelis whose spouses are residents of the territories
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(hereinafter “the Government Resolution”). As of 6 August 2003, the
government’s policy has been anchored in the Temporary Provision Law,
which has been extended from time to time. The Government Resolution and
the enactment of the Temporary Provision Law brought about a change in the
family unification policy that had been followed until that time. In the past,
the starting point had been that an Israeli citizen could be united with a
spouse who had the status of a resident of the territories, absent a ground that
nullified such unification, such as a criminal or security-related impediment.
This starting point was turned around, and since the enactment in the Law of
this policy change, applications for family unification have been rejected,
subject to exclusions listed in the Law.
20. The entry into force of the Government Resolution and the
Temporary Provision Law inflicted a serious blow to the constitutional rights
of Israeli Arabs ― to their right to create a complete family unit within
Israel’s borders with spouses who are residents of the territories. According
to the existing legal situation, this violation has been recognized in the case
law of this Court as a proportionate violation according to constitutional
principles, in light of considerations relating to the security of the state and to
the need to protect the citizens of the State of Israel from the potential danger
presented by terrorist forces in the territories. The conflicting values that are
involved in the right to a family life, on the one hand, and the security
interest on the other, underlie the policy against the background of which the
Temporary Provision Law was formulated, and this conflict of values affects
the correct interpretation of its provisions. Given this situation, in which the
basic right of spouses who are residents and citizens of Israel to unite with
spouses from the territories is violated, it is necessary to construe the
Temporary Provision Law purposively, in a manner that limits the scope of
this violation to the degree that is absolutely necessary in order to realize the
security objective. Given the strength of the basic right to a family life as an
individual constitutional right of the highest order, only a security interest of
truly substantial weight will justify its violation; a theoretical and abstract
security interest will not justify such a violation. Alongside the principle that
the legitimacy of the violation of the right to family life must require the
existence of an especially powerful security interest, there is also a need for a
narrow interpretation of the scope of the permissible violation of the right to
a family life, as well as a liberal interpretation of the exceptions listed in the
Temporary Provision Law which allow, within limited boundaries, a
deviation from the general policy of rejecting family unification. These
exceptions allow the realization of the right to a family life through the grant
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of an Israeli residence permit to a spouse from the territories, under certain
circumstances. The requirement that a violation of the right to a family life be
conditioned on the presence of a substantively weighty security interest, and
an expansive interpretation of the exceptions in the Law which make
possible, under certain conditions, the realization of this right, are the
inevitable consequences of the constitutional clash of values involved in the
Law’s operation.
The interpretation of the Law and its mode of implementation must reflect
the deep constitutional tension that is created as a result of the acute conflict
between the right to a family life and the importance of the security
consideration under the actual circumstances that characterize Israeli society.
The transitional provisions of the Temporary Provision Law
21. The application of the new policy, which prohibits family unification
as a rule, necessitated transitional arrangements for residents of the territories
who had been granted, prior to the Law’s entry into force, a residence permit
or a permit allowing the person to remain in Israel in a family unification
framework. A transitional arrangement was also required for those residents
of the territories who had submitted an application for family unification
prior to the date of the Government Resolution regarding the prohibition on
family unification dated 12 May 2002 (hereinafter: “the determinative date”).
22. The following is the text of the transitional provisions:
Transition
provisions 4. Notwithstanding the provisions of this Law ―
(1) The Minister of the Interior or the area
commander, as applicable, may extend the
validity of a license to live in Israel or of a
permit to stay in Israel, which were held by a
resident of the area prior to the commencement
of this Law, while taking into account, inter alia,
the existence of a security impediment as stated
in section 3D.
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(2) The area commander may give a permit for a
temporary stay in Israel to a resident of an area
who filed an application to become a citizen
under the Citizenship Law or an application for a
license to live in Israel under the Entry into
Israel Law, before the first of Sivan 5762 (12
May 2002) and with regard to which, on the date
of commencement of this law, no decision had
been made, provided that a resident as aforesaid
shall not be given citizenship, under the
provisions of this paragraph, nor shall he be
given a license for temporary residence or
permanent residence, under the Entry into Israel
Law (emphasis added).
23. The transitional provisions are part of the exceptions adopted in the
Law which permit, even after the determinative date, the granting, under
certain circumstances, of a residence permit to a spouse from the territories,
or of a permit allowing the spouse to remain in Israel for the purpose of
family unification. Because these exceptions, and the transitional provisions
as a whole, are provisions that promote and are suited to the realization of the
constitutional right to a family life, they must, in the context of legislation
that violates the basic human right to a family life, be construed and applied
broadly. The purpose of the transitional provisions is to uphold the Israeli
spouse’s right to a family life under factual circumstances that give rise to a
reliance interest and to legitimate expectations regarding that right. Although
the legislature has adopted, with regard to new applications for family
unification, a policy of a sweeping prohibition on the basis of security
considerations, the transitional provisions preserve a certain correlation
between the right to a family life and the issue of security considerations,
based on individual circumstances. The balance that the legislature found to
be proper for the purpose of the transitional arrangement involves, first of all,
the possibility that an Israeli residence permit can be extended for a person
whose residence in Israel had been permitted prior to the determinative date
in the context of family unification. This possibility was also prescribed for a
person who had submitted an application for family unification prior to the
determinative date and regarding whom a decision had not been reached by
that time. However, the permits are to be granted pursuant to the transitional
provisions only when there is no security-related impediment relating to the
particular individual applicant that justifies a refusal to grant or renew a
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permit. The transitional provisions also establish that the extension of a
residence permit that has already been granted will not allow for the
upgrading of the applicant’s status, and the grant of a first-time permit will be
limited to a temporary stay permit which may not be upgraded to a higher
residency status, as long as the arrangements in the Temporary Provision
Law remain in place (HCJ 2208/02 Salameh v. Minister of the Interior [6]).
The security-related impediment in the transitional provisions
24. The existence of a security-related impediment is liable to prevent
the application of the exception incorporated in the transitional provisions
which enables the extension, under certain conditions, of an existing
residence permit that had been granted to a spouse from the territories in the
context of family unification, or which allows for the grant of a new permit to
an applicant who had submitted an application prior to the determinative date
and regarding whom a decision had not been reached prior to that date. In
implementing the transitional provision, the competent authority is required
to decide the proportionate relationship between the Israeli spouse’s
legitimate expectation to realize his right to be united with a spouse from the
territories, as derived from his constitutional right to a family life, on the one
hand, and the scope and level of the existing security-related impediment
regarding the spouse from the territories, on the other hand. The concept of a
“security-related impediment” is not a single-value concept, and its nature
can change from case to case, in view, inter alia, of the nature and strength of
the conflicting values. The concept of a “security-related impediment” is a
framework concept, and its content and weight are affected by the specific
context in which it arises. The more concrete the Israeli spouse’s interest is in
realizing his right to a family life, the greater the weight that is required of
the security-related impediment in order to justify the denial of an application
for family unification in the framework of the transitional provisions, in
terms of either the extension of an existing residence permit or the approval
of an application for a permit that had been submitted prior to the
determinative date regarding which a decision had not yet been reached by
that date.
A concrete expectation regarding the realization of the right to a family
life when a permit for family unification had already been granted and a
request has been made for its renewal has a different import than the
expectation that exists when no such permit has ever been granted.
25. Of the two situations to which the transitional provisions relate, it is
clear that a couple’s expectation with respect to the renewal of a residence
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permit when such a permit had already been issued previously is one of great
strength. The strength of such an expectation will be greater than that of a
couple that has not yet been allowed to enjoy family unification, and whose
application for such unification had not yet been answered by the
determinative date. Moreover, there may be a difference in terms of the
strength of the expectations of a family that has lived in Israel for many years
and has set down roots in terms of their life in Israel and who have a number
of children who are being raised and educated in Israel, as compared to the
strength of the expectations of a young couple that has only recently been
permitted to stay together through family unification and who have only been
in Israel for a short period and have not yet built a complete family unit or
integrated into work and life in Israel. There must be a correlation between
the strength of the expectation for a permit pursuant to the transitional
provisions, and the special weight of the security-related impediment ― the
weightier the expectation for family unification in light of the specific
circumstances, the greater the security interest must be to justify the violation
of that expectation.
26. The Temporary Provision Law refers to the security-related
impediment in s. 3D as follows:
‘A permit to stay in Israel shall not be given to a resident of the
territories pursuant to s. 3, 3A(2), 3B(2) and (3) and 4(2), nor shall a
permit to reside in Israel be granted to any other applicant who is
not a resident of the territories, if the Minister of the Interior or the
area commander, as applicable, determines, in accordance with an
opinion from the competent security authorities, that the resident of
the area or the other applicant or the family member of these are
likely to constitute a security risk to the State of Israel; in this
section, ‘family member’ shall mean a spouse, parent, child,
brother, sister and their spouses. For this purpose, the Minister of
the Interior may determine that a resident of the territories or other
applicant is liable to constitute a security risk to the State of Israel,
on the basis of, inter alia, an opinion by the security personnel that,
within the country or territory in which the resident of the territories
or the other applicant resides, activity is carried out which is liable
to endanger the security of the State of Israel or of its citizens’
(emphasis added).
This provision authorizes the competent authority to refuse to grant a
permit under the exceptions prescribed in the law ― including pursuant to
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the transitional provisions, with regard to an application for a new permit
pursuant to s. 4(2) of the Law ― if the applicant for the permit, or a family
member, is liable to present a security risk to the state. The concept of a
“family member” for this purpose is defined broadly, and it includes various
degrees of family relationship within the nuclear family circle and within a
broader circle as well ― a spouse, parent, child, or sibling, or their spouses.
Thus, the legislature defined a “security-related impediment” broadly, and
includes in it not only a direct risk presented by the permit applicant himself
(hereinafter: a “direct security-related impediment”) but also an indirect risk
presented by the applicant’s close relatives (hereinafter: an “indirect security-
related impediment”).
The security-related impediment in relation to the two alternatives in the
transitional provisions
27. The Law, in its content and its formulation, creates a certain
distinction between the manner in which, pursuant to the first transitional
provision in s. 4(1) of the Law (hereinafter: the “first transitional provision”),
the presence of a security-related impediment affects an applicant seeking a
renewal of a residence permit that had been issued in the past, and the
manner in which such an impediment affects an applicant seeking a permit
for the first time, regarding whom a decision had not yet been rendered prior
to the determinative date, and who is therefore subject to the transitional
provision in s. 4(2) of the Law (hereinafter: the “second transitional
provision”).
28. The provision in s. 3D of the Law regarding the “security-related
impediment” applies directly, pursuant to the text of the second transitional
provision in s. 4(2) of the Law ― i.e., to an applicant for a new permit whose
application had not yet been approved by the determinative date. For this
purpose, the beginning of s. 3D provides that “a permit to stay in Israel shall
not be given to a resident of the territories pursuant to . . . s. 4(2)” if the
competent authority determines that there is a security-related impediment in
the sense of there being a security risk that is presented by the permit
applicant or by his family member. Regarding an applicant for a new permit
whose entry into Israel has not yet been approved but whose application was
pending prior to the determinative date, the Law provides, categorically, that
“a permit . . . shall not be granted” in the event that there is a security-related
impediment, as defined there.
29. The first transitional provision, in s. 4(1) of the Law, operates
differently. This provision deals with an extension of an existing permit held
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by a spouse who has the status of a resident of the territories, and who has
been living in Israel by virtue of that permit. The section provides as follows,
regarding such a case:
‘The Minister of the Interior or the area commander, as applicable,
may extend the validity of a license to live in Israel or of a permit to
stay in Israel, which were held by a resident of the area prior to the
commencement of this law, while taking into account, inter alia, the
existence of a security impediment as stated in section 3D
(emphasis added)..
30. The difference in the statutory language in each of the two situations
is not accidental. It indicates that the security-related impediment is relevant
to both the first and second transitional provisions, but the manner in which it
is applied in the two situations in terms of the balancing that is to be carried
out between the security risk and the level of the violation of the legitimate
interest in the realization of the right to a family life differs. Regarding the
second transitional provision, which deals with an applicant for a new permit
whose entry into Israel, has not yet been allowed and whose application for a
family unification permit was pending and undecided as of the determinative
date, s. 3D provides that a permit will not be granted if there is a security
risk. In contrast, with regard to an applicant for an extension of a family
unification permit that was given in the past, the Law provides that the
competent authority may extend the duration of the permit “taking into
consideration, inter alia, the presence of a security related impediment, as
described in s. 3D of the Law.” It appears that this language indicates that in
the context of the balancing between the conflicting values, greater weight
will be given to the expectation interest of a couple who have already been
allowed to unite in the framework of family unification and who wish to
continue this shared life, as compared to the weight given to the interest of a
couple whose application has not yet been approved prior to the
determinative date. Regarding the first transitional provision, only the
existence of a security interest which is especially strong will provide a
constitutional justification for a violation of the right to family life, if
approval for family unification has been granted in the past and the couple is
now seeking an extension of such approval. Regarding an applicant whose
entry had not yet been allowed prior to the determinative date, a weaker
security-related impediment is likely to be sufficient in order to justify a
refusal to grant a permit, pursuant to the second transitional provision.
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31. It therefore appears that according to the statutory language and in
light of the purpose of the Law, and in light of the constitutional principles
governing its mode of implementation, a first-time applicant to whom the
second transitional provision in s. 4(2) applies will be directly subject to the
provisions of s. 3D of the Law with regard to a security-related impediment.
If the Minister of the Interior determines that either such an applicant, who is
a resident of the territories, or a family member of such an applicant, is likely
to constitute a security risk for the State of Israel, then, according to this
provision, a permit to stay in Israel temporarily will “not be granted.”
Invocation of this authority does involve the exercise of discretion ―
however, when the considerations are balanced, special weight will be
granted to the security aspect. In contrast, the provisions of the first
transitional provision in s. 4(1) of the Law will apply to an application for an
extension of a residence permit, which is submitted by an applicant who has
already been granted a family unification permit in the past and who is living
in Israel pursuant to that permit. According to that provision, the security-
related impediment factor described in s. 3D of the Law constitutes only one
of several factors that the Minister of the Interior is required to consider in
reaching a decision as to whether to extend the existing Israeli residence
permit. In accordance with this provision, the Minister of the Interior, in the
framework of the exercise of his authority and judgment, is authorized to and
may extend the existing residence permit even if there is a security-related
impediment, as stated in s. 3D of the Law. All this is subject to the entire
array of circumstances, and to the relative weight to be attributed to each of
the relevant factors that are considered in the framework of the constitutional
and concrete balancing ― a balancing which is also required in light of the
reasonableness standard that must be followed with respect to any
administrative decision.
32. The exercise of the Minister of the Interior’s authority regarding the
transitional provisions must comply with the principles of administrative law.
Therefore, the Minister of the Interior’s decision must be reached through a
proper administrative process, and it must be free of any irrelevant
considerations, and of any arbitrariness or any violation of the principles of
natural justice. It must be a reasonable decision. Within the bounds of the
reasonableness requirement, the decision must be based on an appropriate
factual underpinning, and it must be based on all relevant considerations and
on those considerations only, and it must be reached by establishing a proper
balance among those considerations, within the boundaries of
reasonableness. Since the significance of the decision is likely to involve a
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possible violation of the Israeli spouse’s high-ranking basic constitutional
right, it must also satisfy the proportionality requirement established in the
limitations clause (HCJ 2028/05 Amara v. Minister of the Interior [7] (per
President Barak, at paras. 9-17); HCJ 4541/41 Miller v. Minister of Defense
[8]; HCJ Horev v. Minister of Transportation [9], at p. 41; HCJ 6358/05
Vanunu v. Home Front Commander, at para. 12 [10]; HCJ 11163/03 Supreme
Monitoring Committee for Arab Affairs in Israel v. Prime Minister [11] (per
President Barak, at para. 22)).
The relevant and contrasting considerations in the transitional provisions
of the Temporary Provision Law
33. The significance of the refusal by the competent authority to grant or
to renew an Israeli residence permit in the case of a spouse who falls within
the purview of the transitional provisions of the Temporary Provision Law in
the context of a family unification process is that the right of the Israeli
family members ― a spouse, and any minor Israeli children ― to conduct a
unified family life will be denied. Juxtaposed against this denial of a right is
the purpose of the Temporary Provision Law, which is to protect the security
of the Israeli public. Although our case involves a review of the
administrative discretion exercised by the administrative authority, the
criteria for examining such discretion are also affected by the principles of
constitutional law, as the exercise of this authority involves a violation of a
basic human right ― i.e., the right to a family life. In light of this, the
authority may only be exercised in a manner that satisfies the relevant
constitutional tests. The security objective, which underlies this use of the
administrative authority, must comply with the tests set out in the limitations
clause of the Basic Law: Human Dignity and Liberty, when such use is likely
to violate the basic right to family life. As a rule, the violation of a basic right
for the purpose of protecting the security of the state and that of its residents
is deemed to have a proper purpose and to conform to the values of the state
as a Jewish and democratic state. The key question, then, is whether the
requirement of proportionality has been satisfied with respect to the manner
in which the authority has been exercised pursuant to the Temporary
Provision Law, when it involves a violation of a basic right to a family life
for the purpose of responding to a security need. In such a case,
proportionality must be examined according to the sub-tests that have been
developed in the case law. The rational connection test, the less-violative
means test and the narrow proportionality test are the guiding tests in
determining the proportionality of a violation of a constitutional right. The
application of these tests to our matter involves the following: first, when the
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security-related impediment consideration arises in connection with spouses
to whom the transitional provisions apply, a correlation is required between,
on the one hand, the measure that has been used which prevents family
unification, and, on the other hand, the objective of protecting the security of
the state and the public peace. Next, it must be the case that the security-
related purpose cannot be achieved through the use of any other measure that
involves a lesser violation. Finally, the nature and level of the violation of the
right to family life and to equality must be in proper proportion to the
security objective that is being pursued through the implementation of the
measure that prevents the requested unification (Amara v. Minister of the
Interior [7] (per President Barak, at para. 11)). For the purpose of applying
the narrow proportionality test, it is not necessary to examine the entire range
of the security benefits that will be achieved, in comparison to the situation
that would prevail if no other measure was taken to prevent the security risk.
All that is needed is an examination of the marginal additional benefit to
security that is achieved through the termination of the family unification
process, compared to the possibility of using alternative security measures ―
such as the grant of temporary renewable permits for staying in Israel, which
allow the for periodic official review by the true level of danger anticipated
from the spouse who has the status of a resident of the territories and who is
living in Israel; increased supervision of the spouse staying in Israel; and a
commitment from that spouse (whose compliance with such commitment
will be tested regularly) to cut off all contact with any hostile elements, along
with other possible measures. In applying the proportionality test as stated,
there may be a difference in the relative weight to be attributed to a violation
of the right to a family life as compared with the security advantage to be
gained from the violation in the context of a refusal to renew a residence
permit to one who has already received such a permit in a family unification
context and is already legally living in Israel, on the one hand, and, on the
other hand, the relative importance to be attributed to these values in a
situation in which the person has not yet been granted such unification status,
and has submitted an application prior to the determinative date which had
not yet been decided by that date. In the following discussion, we will discuss
briefly each of the values that the competent authority is required to consider
for the purpose of applying the transitional provisions; we will then discuss
whether it would be appropriate to intervene in the authority’s decision under
such circumstances.
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The violation of the constitutional right to a family life in the context of
the transitional provisions
34. The refusal to grant a first-time family unification permit, or to renew
such a permit when one had been granted previously, is a severe violation of
the right to a family life ― one which violates a person’s dignity, his
personal autonomy and the meaning of his life which is inextricably tied to
his ability to realize a full life in the framework of family, with a spouse and
children. This violation cuts through the length and breadth of a person’s life,
and affects all aspects of his life, as well as his ability to realize his
independence fully and completely. It detracts from the person’s ability to
fully experience happiness in life, and sentences him to a life of loneliness,
detachment and sadness during the best years of his life. The refusal to
extend an Israeli residence permit to a spouse who has the status of a resident
of the territories, and who is living in Israel in the framework of family
unification, is one of the most severe blows that can be inflicted on the fabric
of family life and on the spouse who is an Israeli resident. As a rule, it is a
more serious violation than that suffered by a couple who have not yet been
allowed to unite and live together in Israel (HCJ 59/83 Cohen v. Jerusalem
Municipality [12], at 320; HCJ 237/81 Dabul v. Petah Tikva Municipality
[13]). When a first-time permit for family unification has been granted, a
family unit begins to be established, and the united family begins to put down
roots in Israel. The spouse who has the status of a resident of the territories
studies Hebrew and integrates himself or herself into the labor market,
children are born, these children receive Israeli citizenship and are educated
and study in Israeli schools, and the family becomes integrated into Israeli
society. The refusal to extend an Israeli residence permit for a person who
fulfils the conditions of the first transitional provision thus causes the family
to face a tragic decision. They must choose between two alternatives. The
first would be the entire family’s removal from Israel, from their relatives,
extended family and from their friends; from their life in Israel and from the
culture and sources of employment on which they rely ― a removal which
would mean the familial, social, economic and cultural disconnection of a
unified family that has lived and put down roots in Israel, sometimes for a
period of many years. The second possibility is for the couple to separate,
with the Israeli spouse remaining in Israel and the foreign spouse returning to
his or her original place of residence within the territories, and with the
children being separated from one or the other of their parents. The
separation of the family members from each other under such circumstances
is difficult for all involved ― for the couple and for their children ― and it
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involves the fracturing of the family’s human, social, cultural, and economic
frameworks.
35. The refusal to grant an application submitted by a resident of the
territories to enter into Israel for the purpose of family unification, when no
such application has been approved in the past, also carries severe
consequences from the perspective of the family that has not yet had the
opportunity to build a unified family unit. However, the violation involved in
this refusal is of lesser magnitude than that of the violation caused to a party
whose residence in Israel has already been approved, and which has already
established a full family life in Israel, with all that this implies. This
difference in the strength of the expectation of family unification and the
extent of the violation of that expectation in the two situations affects the
determination of the proper balance between the violation and the level of the
security-related impediment in the framework which is necessitated by the
proportionality test. This difference finds expression in the wording and
purpose of the Law.
The security-related impediment in relation to the transitional provisions
in the Temporary Provision Law
36. The duty of the state to protect its citizens’ lives places the security
consideration at the highest level of importance. This consideration has two
aspects: a social aspect, which impacts on the state’s duty to protect its
citizens’ security; and an individual aspect, which impacts on the right of the
individual within the society to enjoy adequate protection of his life and of
his well-being ― protection that the government has a responsibility to
provide. The right to life is a constitutional human right of the highest order
and it ranks first among the human rights protected by the Basic Law: Human
Dignity and Liberty. Nevertheless, the value of protecting life is not a single
absolute concept. Its relative weight varies from case to case, according to the
probability of the realization of the danger to life that arises in the specific
context. Occasionally, the security value will also need to be weighed against
other values of special importance, according to their relative weight.
37. The assessment of the degree of danger presented by a particular
person is a complex task. It becomes especially difficult, given the security
situation that Israel is currently facing, when what must be assessed is the
danger presented by a resident of the territories. The forces battling against
Israel are terrorist forces that are frequently assisted by the civilian
population. The source of the security danger is likely to relate directly to the
spouse who has the status of a resident of the territories ― the spouse who is
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applying for a family unification permit or an extension of such a permit.
This is the case when the applicant for the permit is himself connected to or
involved in terrorist activity. However, the danger may relate not to the
applicant for the permit himself or herself, but rather, to the applicants’
relatives and family members who are themselves connected to terrorist
activity; in these circumstances, the concern is that such family members
might make use of their relatives who have been granted family unification
status in order to promote their dangerous activities (Amara v. Minister of the
Interior [7] (per President Barak, at para. 14); Ajuri v. IDF Commander [4]).
Therefore, in an assessment of the security risk presented by a resident of the
territories seeking family unification status, the evaluation must be not only
of the direct danger presented by the applicant himself. Relative weight must
also be given to the applicant’s family connections to elements that are
involved in terrorism, in light of the potential danger involved in the
exploitation of these connections by elements that endanger the security of
Israel’s residents. Thus, the definition of the security-related impediment
provided in s. 3D of the Law relates not only to the direct security danger
presented by the applicant for the permit himself, but also to the indirect
security risk presented by the permit applicant’s family connection to
elements that endanger the security of the state.
38. However, it must be stressed that the subject of the security-related
impediment referred to in the statutory language is, in all circumstances, the
security danger presented by the applicant for the permit himself, whether a
direct danger, relating to a concern of direct involvement on the part of the
applicant himself in terrorist activity, or an indirect danger, relating to a
concern arising from the possibility that the applicant will be wrongfully
exploited by family members who are involved in terrorism. The purpose of
the analysis of the security-related impediment is not to prevent a danger
presented by a relative of the applicant alone; rather, it relates to the effect
that this danger will have on the security danger presented by the applicant as
a consequence of possible exploitation of the applicant by terrorist elements,
for harmful purposes (Ajuri v. IDF Commander [4], at pp. 370-371; HCJ
1730/96 Sabih v. IDF Commander of the Judea and Samaria Region [14], at
p. 364). The explanatory notes accompanying the draft version of s. 3D of the
Law clearly indicated that the purpose of weighing the danger presented by a
family member of an applicant who is a resident of the territories is that it can
indicate, in an indirect manner, the level of danger presented by the applicant
himself, in light of the general professional assessment of the security
establishment that “such a connection between a resident of the territories
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and a family member, from which a security risk may result, can be
exploited, as has often been proven in the past” (explanatory notes to s. 3D,
Government Draft Laws, 16 May 2005, at p. 626). Since the level of danger
presented by a family member is only a possible indicator of the level of
danger presented by a resident of the territories applying for family
unification, it is understood that for the purpose of implementing s. 3D of the
Temporary Provision Law, the weight of a direct security risk presented by
the resident of the territories (which would justify the denial of an application
for an Israeli residence permit because of a direct security-related
impediment) cannot be compared to the weight of an indirect security-related
impediment that arises from the danger presented by the possible potential
influence of the foreign spouse’s relative. Naturally, the direct impediment
clearly outweighs the indirect impediment, and this disparity between the two
situations must be considered on its own merits when the competent authority
weighs the particular security risk presented by the spouse who is a resident
of the territories against the level of the violation of the right to a family life
caused by the refusal to grant a residence permit.
Weighting of the relevant values in applying the transitional provisions
39. The competent authority that must render a decision regarding the
application for a residence permit in the framework of the transitional
provisions of the Law must base his decision on the principles of
reasonableness and proportionality. Reasonableness is a criterion that is used
when reviewing an exercise of administrative discretion; when such exercise
of discretion involves a possible violation of basic rights, it must also comply
with the proportionality test, as established in constitutional principles and in
the limitations clause.
40. In deciding whether to grant a residence permit within the framework
of the transitional provisions, the competent authority must engage in a
reasonable and proportionate weighing of the various relevant values that
compete with each other with respect to this issue. On the one hand, the
authority must weigh the severe violation of the right to a family life that is
inflicted on the Israeli resident or citizen if the application is denied. In this
context, the authority must take into consideration the violation of the
principle of equality that is thus caused, and the strength of the anticipated
consequences that the couple and their children will experience, on a human
level, as a result of the inability to establish a unified and complete family
unit in Israel, which is the permanent place of residence of one of the
spouses. In the context of this consideration, and given the policy that has
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been anchored in the Temporary Provision Law, there is likely to be a
difference in the strength and the weight of the harm done to an existing
family unit that has been granted unification status in the past and wishes to
continue thus, on the one hand, and the harm done to a family that has not yet
achieved that status, and whose application for unification was pending and
not yet decided on the determinative date. The level of the harm done in the
first case is greater, because the significance of the non-renewal of the permit
is the dissolution of a family unit that has already been established, the
removal of the family from the familial, social and economic roots that have
been laid down since the original permit was granted, and the delivery of a
heavy blow to the fabric of family life that has developed over the years. In
assessing the level of the damage to the family life of an applicant who seeks
to extend a residence permit that had been issued in the past for the purpose
of family unification, the authority must consider, inter alia, the number of
years that the permit holder has resided in Israel, the level of his involvement
in life in Israel, the size of his family, the chance that the Israeli spouse will
be able ― in the event that they are forced to separate ― to bear the burden
of maintaining the family if the other spouse is forced to leave Israel, and the
overall significance of the couple’s separation for the existential fate of the
family and of the children. Regarding an application for family unification
that has not yet received initial approval, what must be weighed is the level
of the damage caused if, from the outset, the couple’s establishment of a
complete family unit is prevented, as well as the consequences of this
damage for the couple and for their children.
41. The competent authority must weigh the factor of the violation of the
right to a family life against the existence of a security-related impediment
pertaining to the applicant for the permit ― a direct impediment with regard
to the applicant himself, or an indirect impediment that may arise due to the
applicant’s connections with family members who present a security risk.
Naturally, there will be a difference in the strength and weight of a direct
security-related impediment and that of an indirect security-related
impediment. The existence of a direct and substantial security-related
impediment will justify a refusal to grant approval for family unification,
despite the severe violation of the right to family life, regardless of whether
the family has already been unified in the past or has not yet been granted
unification status. The issue is different when the security-related
impediment is indirect. The risk presented by a permit applicant, when such
risk stems from the applicant’s family relationship to parties that are
connected to terrorism, is a complex matter; the probability of its realization
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is subject to assessment, and it requires the cautious exercise of judgment.
The indirect danger must be measured carefully, and only the proper relative
weight ― and not more than that ― must be attributed to it. We must take
care to avoid reaching a sweeping conclusion to the effect that every permit
applicant whose relative is connected to terrorist activity is totally
disqualified for family unification status. Instead, the competent authority
must assess the case-specific probability that the permit applicant himself
will be subject to influence and pressure from family members and will thus
become a direct source